A Powerful Court

By now, most of us are used to U.S. Supreme Court rulings that bring big changes to American life — on abortion, guns, same-sex marriage and more. Thursday may bring another sweeping ruling, on climate change.

But the Supreme Court’s power is strange in a global context. The highest-level courts in other rich democracies tend to be less dominant. Elsewhere, courts can still overturn laws and restrict the government’s reach, but they often face sharper limits on their decisions.

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There are two major reasons that the U.S. Supreme Court is unusual. First, the court’s structure allows for few checks on the justices’ power: They have lifetime tenure, and other branches of government have few ways to overturn a ruling. Second, the dysfunction of the rest of the U.S. government, especially Congress, has created a vacuum that the Supreme Court fills.

Unchecked judges

Supreme Court justices remain on the bench for life or until they choose to retire. In other countries, there are term or age limits: Judges on Germany’s federal constitutional court, for example, serve for 12 years or until age 68, whichever is sooner.

The U.S. model means the current court’s makeup of six conservatives and three liberals is likely to remain in place for years if not decades. And if justices are careful about timing their retirements to benefit their ideological side, it could last even longer. As a result, future elections and public opinion can end up having little influence on the court.

In other countries, limited terms and mandatory retirement ages create opportunities for more recently elected lawmakers to remake the highest courts and keep them in check.

“There is some accountability,” said Tom Ginsburg of the University of Chicago Law School. “If a court is too out of control, there is pressure to rein it back in.”

The U.S. also makes it more difficult to overrule a court’s decisions. A two-thirds vote from both the House and the Senate, or approval from two-thirds of state legislatures, initiates a constitutional amendment. Then three-fourths of the states must ratify the amendment. This has only been successfully done 17 times in the more than 230 years since the Constitution and the Bill of Rights were ratified — and never since 1992.

In other countries, legislators can more easily overrule the courts. Canada’s Parliament can pass laws that ignore court rulings, although such laws must be reapproved every five years. British courts are so weak that their decisions act more as recommendations than orders, said Kim Lane Scheppele, a legal expert at Princeton University.

Political dysfunction

The U.S. Supreme Court is also empowered by the frequent gridlock across the rest of the federal government. For example, Congress could pass a federal law guaranteeing access to abortion in the first trimester, which most Americans favor. Or Congress could pass laws giving the Environmental Protection Agency clearer authority to deal with climate change. Neither has happened.

Congress’ struggles demonstrate a broader problem: The U.S. has built so many checks into its political system that it has become what political scientist Francis Fukuyama calls a “vetocracy.” Each part of the lawmaking process, from the House to the Senate to the White House, is a potential veto point for bills. Then there are additional barriers — like the Senate filibuster, which requires 60 of 100 senators to pass most legislation.

The many veto points make it difficult for even the party that controls both Congress and the White House, as the Democrats now do and the Republicans did in 2017 and 2018, to get much done. The courts fill the void.

Other advanced democracies tend to have simpler parliamentary systems. So when a political party or coalition wins an election, it can quickly pass laws to act on its promises.

“When courts wind up doing so much of the work, it is often precisely because the parliament is broken,” Scheppele said.

A conservative system

Many Republicans argue they are simply playing by the rules set by the Constitution, and that liberals complain because they don’t like the results. (Sen. Mitch McConnell made a longer version of this case in a recent interview with The New York Times.)

But the rules do inherently favor McConnell’s side. The liberal vision for America requires passing laws to make major changes — already difficult in the political system. The Supreme Court adds another veto point, further bolstering a small-c conservative process. That is why much of the Democratic agenda now focuses on political and judicial reforms.

Yet the conservative process also makes those political and judicial reforms difficult to enact. So for the foreseeable future, the Supreme Court is likely to play a sweeping role in American life.

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